BN v Hornsby Shire Council [2008] NSWADT 249

CITATION: BN v Hornsby Shire Council [2008] NSWADT 249

DIVISION: General Division

APPLICANT BN PARTIES: RESPONDENT Hornsby Shire Council

FILE NUMBER: 073252

HEARING DATES: 27 February 2008

SUBMISSIONS CLOSED: 27 February 2008

DATE OF DECISION: 2 September 2008

BEFORE: Wilson R - Judicial Member

CATCHWORDS: access to documents - personal affairs

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Privacy and Personal Information Protection Act 1998

APPLICANT In person REPRESENTATION: RESPONDENT I Woodward, solicitor

ORDERS: 1. The decision under review is affirmed.

REASONS FOR DECISION 1 These proceedings have been commenced by the applicant seeking review of a decision made by the respondent under the primary legislation. He seeks redress upon the basis that the respondent has acted in breach of privacy principles established by this legislation. The proceedings were heard on 27 February 2008 together with two other proceedings as some of the evidence was common to all three matters. This was a consensual arrangement between the parties as a matter of convenience to them. However, even though these three proceedings were heard on the same day they have been heard as separate matters. The several exhibits have been noted accordingly. The parties are aware that separate determinations will be made by the Tribunal. 2 One difficult consequence of this approach though has been that the applicant has put before the Tribunal a large volume of documents that have little relevance to the three applications that the Tribunal heard on 27 February 2008. The applicant accepted this, in part, at hearing and also in his written outline (exhibit A2, page 4, last paragraph). The applicant has a number of issues relating to the respondent which he is seeking to agitate, partly in the current proceedings under consideration and partly in other proceedings which are pending. This has made it difficult for both the Tribunal and the respondent in identifying the precise nature of the issues for determination and in ascertaining what parts of the evidence are relevant so that they may be taken into consideration. 3 Whilst the applicant was able to articulate arguments well, it became clear as the hearing progressed that he had little understanding of how he could effectively adduce relevant evidence and put submissions that were directly in point. This is not meant to be critical, as the applicant was simply endeavouring to assist to the best of his ability. However, it has meant that the Tribunal has had to peruse a large amount of irrelevant materials in order to discern the specific issues that are required to be determined. This of course occurs from time to time when applicants are not legally represented. When it does, an applicant will often find that many of the arguments presented to the Tribunal are not dealt with because they have no true relevance to the issues at hand. The Tribunal is a statutory body which cannot exceed its jurisdiction and powers. 4 In relation to the matter here under consideration, the applicant initiated the process by submitting an internal review application to the respondent around 03 July 2007 (exhibit R5, page A-005). This is an application in form in relation to a privacy complaint which is articulated by reference to an attached letter (page A-007). That letter is wide ranging, even to the point where a great deal of explanation or evidence would be required before its full import could be understood adequately. However, the privacy issue that is raised in this letter appears to be that the Mayor of the respondent Council copied a Council document to members of the Executive of the Liberal party (page A-007 at point 5). The respondent has so interpreted the Privacy Complaint lodged by the applicant on internal review. The applicant accepted this as the issue at hearing when acknowledging that his concern was that the Mayor had let the others know what I was trying to do, that is, get an Inquiry. Whilst the applicant also made a number of oral submissions at hearing, many of which are reflected in the documents before the Tribunal, concerning his endeavours to initiate an inquiry, these submissions and arguments were not in point. 5 The applicant's case is that his personal information (his name, address and the fact that he had requested an Inquiry into the respondent's affairs) was disclosed to certain members of the Liberal Party. It appears to be common ground that the respondent did disclose such information about the applicant to these several recipients and the relevant facts are in short compass. On or about 26 April 2006 the applicant lodged a submission with the respondent detailing reasons why an Inquiry into Council's affairs should be held (exhibit R5 page A-003). On 09 May 2006 the applicant sent an email to the respondent's Mayor which, inter alia, noted that he had not received a response to his earlier letter (exhibit R5 pages Aoo1 and 002). This email was copied by the applicant to 6 other recipients noted in the headnote. The email also notes at the foot thereof that a copy was provided to a 7th recipient. The Mayor respondent to both the earlier submission and the email by letter dated 09 May 2006 (exhibit R5 pages A-003 and 004), this response being copied by the Mayor to the abovementioned 6 recipients, but not the 7th. The copying of this response to the 6 recipients is (are) the act(s) of disclosure of which the applicant complains, or at least did so at hearing. 6 It is a little difficult to bring this argument within the scope of the Privacy Complaint (R5 page A-005) as in that document the applicant states that the infringing conduct occurred between 09 February 2007 and 28 June 2007. However, the respondent communicated with the applicant about his complaint (exhibit R5 pages A-041, 043 and 079) following which the respondent treated this issue as falling within the complaint. An additional issue was also considered by the respondent (communications between the applicant and Councillors of the respondent Council), but this was not pressed at hearing. Equally, the applicant did not press at hearing issues concerning the collection, storage and use of the information as alleged in his initial privacy complaint: the only issue at hearing was the disclosure to the abovementioned 6 recipients. 7 Section 18 of the Act prohibits disclosure of personal information that is in fact held by the respondent. Whilst the respondent did not solicit any of the relevant information, section 4(4) of the Act provides that information is held by an agency where it has possession or control of it. Thus s.18 has application where an agency has not taken any steps soliciting the information, that is, where the information has not been collected by an agency within section 4(5) but has been provided to it simpliciter. This is the case here. However, this prima facie absolute prohibition is qualified, inter alia, by sections 18(1)(a) & (b) and section 26 of the Act. These sections have potential application here, but the respondent relied upon section 18(1)(a) only in its decision (exhibit R5 page A-082) and section 18(1)(b) at hearing. 8 Section 18(1)(a) of the Act applies to any personal information in fact held by the respondent about the applicant, irrespective of the manner in which it came to be held. Despite this, one of the elements that must be established is that the disclosure be directly related to the purpose for which the information was collected. The respondent did not in fact solicit the information: the applicant without request provided it. The better view is that the word collected in section 18(1)(a) does not require acts of solicitation by an agency so as to bring the relevant information to the files maintained by an agency: for the purposes of this sub-section the information may be collected, in the sense of being provided, in any manner. This is consistent with the broad reach of s.18 to any information in fact held by an agency. Also, section 18(1)(a) does not in its terms refer to information collected by an agency. 9 The next question is whether the disclosure of the information to the recipients was directly related to the purpose for which the information was collected (or provided). The purpose with which the applicant provided the information was to seek action by the respondent to address the issue as to the need for the inquiry that he had proposed. The respondent no doubt understood this to be the case. Clearly, a disclosure which furthers the purpose of collection would fall within the section. However, the relationship of which section 18(1)(a) speaks between the act of disclosure and the purpose with which the information is collected is not confined by its terms to disclosures falling within the scope of the purpose nor to disclosures which further that purpose. It is possible that the act of disclosure may be directly related to a particular purpose in other ways, and a direct relationship is all that is required. Still, the relationship must be a direct one. 10 The relationship relied upon by the respondent in its decision was that people would quite reasonably expect a letter to be copied to others if their own correspondence had also been copied to those people (exhibit R5 page A-082). The argument here is that as the applicant's email of 09 may 2006 had been copied by the applicant to the 6 other persons, a letter in response which is also copied to those same persons, has a direct relationship with the purpose motivating the applicant's own email. This may well be true if the letter in response dealt only with the contents of the applicant's email. However, in fact it went further than this and discussed a number of matters, including the applicant's earlier submission seeking an inquiry and his claim that his submissions had been edited. The respondent's letter of 09 May 2006 (page A-003) only referred to the email briefly. 11 However, the final argument advanced at the hearing was a little broader than this. The respondent's case as argued was that, as the applicant's email referred to his original submission for an enquiry and his allegations that his submission had been edited, by copying this email to others he has broadened the scope of his initial purpose by, in effect, bringing those other persons in as interested parties. No doubt the applicant was of the view that by bringing these persons into the picture he would further his initial purpose. In the Tribunal's view, the acts of the applicant in copying his email to these persons provides a sufficient nexus so that it can be properly said that the disclosures made in the letter of 09 May 2006 to these persons has a direct relationship with the purpose with which the information was collected, that is, provided in the first place. The relationship is a direct one because the applicant informed the respondent that he had notified these third parties about his earlier submission, as well as his allegation that this submission had been edited. If the applicant had simply sought their assistance, and had not notified the respondent of this step, the relationship would still have been there, but it would not have amounted to a direct one. 12 Section 18(1)(a) contains an additional requirement relating to whether an agency has ground for believing that an applicant would object to disclosure. The Tribunal has no doubt that on the materials before it that the writer of the letter of 09 May 2006 had no reason to believe that the applicant would object to the disclosures so made. Consequently, section 18(1)(a) of the primary legislation applies to these disclosures. 13 The respondent also pressed for the application of section 18(1)(b). This argument should also be considered as an alternative basis for decision. It is quite clear that the applicant was well aware, on reasonable grounds, that any response to his email may have also been copied to the 6 persons to whom he had copied his email. However, it is not so clear whether, on the facts, it can be said that the applicant was reasonably aware that information of this kind is usually disclosed to the persons to whom disclosure was in fact made. This particular defence does not appear apposite to the facts on hand as its focus is upon the kind of information that is involved, rather than upon any conduct of an applicant, which makes a disclosure reasonable. Consequently, the Tribunal is not satisfied that this defence is made out here. It would perhaps have been preferable for the respondent to seek the applicant's express consent to the disclosures that were made so as to bring section 26(2) into play. 14 As section 18(1)(a) of the Act has application, the respondent has not acted in breach of the primary legislation and the respondent's decision is affirmed.